Karnataka High Court
Sri.Hanumanthappa M/O Bharmamma ... vs Sri.Basavaraj S/O Hanumappa Karjagi on 7 October, 2020
Author: V.Srishananda
Bench: V. Srishananda
-1-
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A. NO.100039 OF 2016 (MV)
BETWEEN
1. SRI HANUMANTHAPPA M/O.BHARMAMMA
KANDEPPANAVAR, AGE : 52 YEARS,
OCC : AGRICULTURIST.
2. SRI.MANJAPPA S.HANUMANTHAPPA
KANDEPPANAVAR, AGE : 25 YEARS,
OCC : COOLIE.
3. SRI.SANTOSH S/O.HANUMANTHAPPA
AGE : 22 YEARS, OCC : COOLIE.
4. SMT.BHARAMAVVA S/O.HONNAPPA NAIKAR,
AGE : 62 YEARS, OCC : HOUSE WIFE.
ALL ARE R/O.
KADARAMANDALAGI VILLAGE,
TAL :BYADGI, DIST : HAVERI.
.......APPELLANTS
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND :
1. SRI.BASAVARAJ S/O.HANUMAPPA KARJAGI,
AGE : MAJOR,
OCC : BUSINESS OWNER OF VEHICLE,
BEARING NO.KA-27/6374,
R/O.KADARAMANDALAGI, TQ : BYADGI.
-2-
2. SHRIRAM GENERAL INSURANCE CO., LTD.,
E8, EPIP, RIICO INDUSTRIAL AREA
SITAPURA JAIPUR, RAJASTHAN STATE.
.....RESPONDENTS
(BY SRI.S.K.KAYAKAMATH, ADVOCATE FOR R-2)
(NOTICE TO R-1 -SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT, AND PRAYED THAT JUDGMENT AND AWARD DATED
01.09.2015 IN M.V.C.NO.24/2013 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE AND AMACT, IT COURT BYADGI MAY
KINDLY BE SET ASIDE AND ALLOW THE CLAIM PETITION AS
PRAYED FOR BY ALLOWING THE ABOVE APPEAL WITH
COST, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA COMING ON FOR ORDERS THIS DAY, COURT
DELIVERED THE FOLLOWING :
JUDGMENT
Though this matter is listed for orders today, with the consent of both the parties, matter is taken up for final disposal.
2. The present appeal is preferred questioning the validity of the judgment and award dated 01.09.2015 passed in MVC No.24/2013 on the file of Senior Civil Judge and Member Additional M.A.C.T, Itinerary Court at Byadgi (hereinafter referred to as "the Tribunal" for short). -3-
3. The brief facts, which are necessary for disposal of the appeal are as under:
3.1. A claim petition came to be filed under Section 166 of the M. V. Act by the dependants of deceased-
Honnavva stating that on 17.09.2012 at about 3.00 p.m. deceased-Honnavva who is the wife of first claimant along with others were traveling in Katama vehicle (three wheeler) bearing No.KA-27/6374 from Kadaramandalagi village to Geraguddabasapur village for attending the function in the said village and the driver of said vehicle was driving the same in a rash and negligent manner and when the vehicle was moving on Somasagar-Byagawadi road, driver lost control over the vehicle and as such vehicle toppled down resulting in an accident. In the accident Honnavva and the other inmates had sustained fatal injuries and Honnavva died on the spot. Husband and children of deceased-Honnavva have filed a claim petition before the Tribunal seeking compensation. -4-
4. In pursuance of the notice issued, the respondent Nos.1 and 2 who are the owner and insurer of the offending vehicle respectively entered appearance through their counsels and filed their objection statements denying the entire claim petition averments. However, respondent No.1 has admitted that he is the owner of Katama vehicle which was insured with respondent No.2. Respondent No.2 did not dispute that Katama vehicle was insured with its company and the policy was valid as on the date of accident. Further, respondent No.2 contended in the written statement that the driver of offending vehicle was not having valid and effective driving licence as on the date of accident and therefore there was violation of policy conditions. It is further contended that for their discharge from liability on the ground that the Katama vehicle was having permit to allow 4 persons in their vehicle but on the day of accident, there were totally 8 passengers traveling in the said vehicle which is beyond the permit limit and they are unauthorized passengers and thus sought for dismissal of the petition. -5-
5. Based on the rival contentions, the Tribunal raised the following issues :
"1. Whether petitioners prove that the accident in question and resultant death of the wife of petitioner no.1 Honnamma W/o.
Hanumanthappa Kandeppanavar, was occurred on 17.09.2012 at about 3.00 hours on Somasagar-Byagawadi road, near Somasagar Anicross, due to the rash and negligent driving of the vehicle Katama bearing Reg.No.KA-27/6374 by its driver?
2. Whether the respondent no.2 prove his discharge from the liability for the grounds urged in his written statement?
3. Whether the petitioners are entitled to claim compensation as prayed for? If so, from whom and at what rate?
4. What order or award?"
6. In order to substantiate the claim petition averments, the first claimant got examined himself as P.W.1 and relied on documentary evidence which were exhibited and marked as Ex.P.1 to Ex.P.37. On behalf of -6- the respondents, five witnesses were examined as R.W.1 to R.W.5 and 12 documents were marked as Exs.R.1 to R.12.
7. After hearing the counsels appearing for the parties and on cumulative consideration of the oral and documentary evidence, the Tribunal allowed the claim petition to the tune of Rs.8,90,000/- as under :
1 Loss of dependency Rs.8,10,000/-
2 Towards transportation of Rs.20,000/-`
dead body and funeral
expenses.
3 Towards loss of estate. Rs.30,000/-
4 Towards love and affection to Rs.30,000/-
petitioner No.1 to 3.
Total Rs.8,90,000/-
8. It is that judgment which is under challenge seeking enhancement of the compensation in this appeal.
9. The learned counsel for the appellants vehemently contended that the Tribunal ought to have taken the income of the deceased as at Rs.15,000/- per -7- month instead of Rs.4,500/- per month, as the deceased was working as agriculturist and doing animal husbandry work. The Tribunal has wrongly held that appellant Nos.1 to 3 are not dependants as they have attained majority.
The Tribunal ought to have held that all the claimants are dependants of the deceased and has wrongly held that there is violation of permit conditions. The Tribunal has erred in awarding meager compensation on conventional heads and did not award any compensation towards loss of consortium and thus prayed for allowing the appeal.
10. Per contra, the learned counsel for respondent No.2 Sri.S.K.Kayakamath vehemently contended that the Tribunal has properly taken into consideration the relevant materials on record and has allowed the just compensation and therefore, it does not require any further indulgence from this Court and prayed for dismissal of the appeal.
-8-
11. After hearing the learned counsels for the parties and on perusal of the records, the following points would arise for consideration:
1. Whether the appellants-claimants are entitled for enhancement of compensation?
2. Whether the Tribunal has erred in fastening the liability on the owner of the vehicle?
12. This Court answers the above points No.1 and 2 in affirmative for the following:
REASONS
13. In the present case, the liability is fastened on the owner of the vehicle on the ground that the vehicle involved in the accident was plied outside Byadgi Taluka limits and therefore the Insurance Company is not liable to pay the compensation. Further, it is the contention of the Insurance Company that more number of passengers were traveling at the time of the accident than the permitted limit and driver of the Auto Rickshaw did not hold a valid driving licence.-9-
14. Insofar as first contention is concerned, the learned counsel for the appellants submits that in view of the Division Bench ruling in the case of United India Insurance Co. Ltd, by its Divisional Manager vs. Sandhya in MFA.No.102428 of 2017 decided on 07.06.2019, wherein the Division Bench of this Court has clearly held that violation in respect of policy terms and fastening the liability on the owner of the vehicle exonerating the Insurance Company is not tenable.
15. On close scrutiny of the judgment of the Division Bench, there is sufficient force in the argument on behalf of claimants. The relevant portion of the said judgment is culled out hereunder:
"18. Therefore, the sole distinction on which the authorities relied on by the learned counsel for the appellant can be distinguished is on the ground that whether there was any violation of the purpose for which the vehicle was to be used and whether the violation of exceeding the territorial jurisdiction granted on the ground to ply the vehicle would amount to violation of purpose for which the vehicle was to be used. If that -10- distinction is understood and kept in mind, we find that whether the Insurance Company can absolve its liability on the ground that the vehicle in question has plied for the vehicle can be decided. Further, the Insurance Company cannot contend that its liability is absolves on the ground that the purpose for which the vehicle was to be used, is violated. Because in this case the sole ground taken is violation of permit condition."
16. By applying the above principles to the case on hand, the contention of the Insurance Company that Auto Rickshaw was driven beyond the route specified in the permit and as such Insurance Company is not liable to the pay the compensation cannot be countenanced in law.
17. Insofar as violation of permit condition on account of more number of passengers is concerned, admittedly there are only three claim petitions filed in respect of the accident. Since the offending vehicle is an Auto Rickshaw, it had permit of three passengers and a driver. Therefore, the reasoning assigned by the Tribunal to exonerate the Insurance Company on the ground of -11- excess passengers cannot be countenanced and needs interference.
18. The third contention in regard to the driver of offending vehicle not possessing valid driving licence is now covered by the principles of law enunciated in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668. Thus, on the ground of non possessing valid driving licence exonerating the Insurance Company needs to be interfered with.
19. Therefore, the adjudged compensation needs to be paid by the Insurance Company and accordingly, point No.1 is answered.
20. Accident is not in dispute. So also, Honnavva having died on the spot in the accident is not in dispute. The Tribunal has taken the income at the rate of Rs.4,500/- per month in the absence of formal proof of income. The same is on the lower side. In fact, for the accidental claim of the year 2012, this Court and Lok- -12- Adalath would normally consider the notional income for the accidental claims of the said year at Rs.6,500/- per month. In the instant case also, in the absence of any proof with regard to the income, notional income of Rs.6,500/- p.m. is to be taken.
21. Deceased-Honnavva was aged 40 years at the time of accident. Therefore, 25% of her earnings will have to be added towards future prospects. There are three dependants and therefore 1/3rd of deceased earnings will have to be deducted towards her personal expenses. The multiplier adopted by the Tribunal is proper. Therefore, under the head loss of dependency, the claimants are entitled for a sum of Rs.9,75,000/- (Rs.6,500/- + 25% (future prospects) - 1/3rd (personal expenses) x 12 x 15 = Rs.9,75,060/-). Appellants No.1 to 4 are entitled for loss of consortium in a sum of Rs.40,000/- each and Rs.30,000/- towards other conventional heads. Accordingly, the appellants are entitled for the following compensation: -13-
1 Loss of dependency Rs.9,75,060/- 2 Towards conventional heads Rs.30,000/- 3 Towards love and affection to Rs.1,60,000/- appellants No.1 to 4
(Rs.40,000/- X 4) Total Rs.11,65,060/-
22. In view of the foregoing, the following order is passed:
ORDER The appeal is allowed in part.
The appellants are entitled for total compensation of Rs.11,65,060/- as against the compensation awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization.
Respondent No.2-Insurer shall deposit the entire compensation amount within six weeks' from the date of receipt of a certified copy of this order.
Sd/-
JUDGE ckk